August 08, 2016

Futures Commission issues final report: We must embrace change now

Faced with a legal profession striving to deal with multiple challenges and the reality of vast numbers of Americans unable to access legal services, the American Bar Association will establish a Center for Innovation to map the way forward, it was announced at the ABA Annual Meeting in San Francisco. 

Approved by the ABA Board of Governors Aug. 5, the center's governing council will be chaired by Suffolk University Law School Dean Andrew Perlman, vice chair of the ABA Commission on the Future of Legal Services, which offered up the formation of the Center for Innovation as one of its key recommendations.  

Established by past ABA President William C. Hubbard in 2014 during his term, the 30-member futures commission spent two years engaged in an intensive research effort to document the challenges and propose solutions to the issues confronting the legal profession and the American public.

The commission’s work including convening monthly webinars, 80 grassroots meetings and events and a high-profile National Summit on Innovation in Legal Services featuring 200 experts at Stanford University in May 2015. The commission’s “main objective,” futures commission Chair Judy Perry Martinez told the final meeting of the task force on Aug. 6 at the ABA Annual Meeting, was “listening and learning.”

At the Aug. 6 meeting, the commission presented its 96-page report detailing difficulties and obstructions to the delivery of justice and issuing 10 broad recommendation, including the Center for Innovation, to address them. 

In her remarks to the commission, ABA President Paulette Brown thanked Hubbard for his “extraordinary vision” and noted the urgency of the issues facing the legal profession and access to justice.

 “The future is not going to wait for us,” she said. “We have to go with it.”

In a presentation to close to 120 people at the commission’s meeting, commission reporters Renee Knake and Benjamin P. Cooper detailed the commission’s findings and recommendations. Among the commission’s findings about the public: Despite praiseworthy efforts by the legal profession to expand the public’s access to legal services, most people living in poverty and moderate-income individuals do not receive the legal help they need and many people, including those in the middle class, do not know they have legal problems.

As well, public trust and confidence in obtaining justice and accessing legal services is “compromised by bias, discrimination, complexity and lack of resources,” according to the commission’s report, including a legal profession that is only 12 percent minority and unconscious and unconscious bias that “impedes fairness and justice in the legal system.”

Regarding the legal profession, the proliferation of technology, such as mobile apps and artificial intelligence that now does the work of multiple lawyers, continues to change how legal services can be access and delivered, the report noted. At the same time, it said, the traditional law practice model “constrains innovations that would provide greater access to, and enhance the delivery of, legal services” Also deterring innovation, it said, is the legal profession’s resistance to change.

The new Center Innovation would “position the ABA as a leader and architect of the profession’s efforts to increase access to justice” and improve the delivery of those services to the public through “innovative programs and initiatives.” The report said the center would be responsible for driving innovation in the justice system and the legal profession by, for example, serving as a resource for ABA members, maintaining an inventory of the ABA’S innovation efforts as well as the efforts of the domestic and international legal services community, and operating a program of “innovative fellowships” to work with other professionals, such as technologists, entrepreneurs and design professionals, to create models that improve the justice system.

Aside from the establishment of the Center for Innovation, another of the commission’s goals that has reached fruition is a resolution urging state courts to consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Service as  “much needed guidance as they consider how to regulate the practice of law in the 21st Century,” according to the report.  Adopted by the ABA’s policy-making House of Delegates at the ABA Midyear Meeting in February after an extensive debate, the regulatory objectives resolution is part of a broader commission that also urged continued study of Alternative Business Structures, such as non-lawyer ownership of law firms, a sensitive topic in the legal community.

The commission also recommended reform of the criminal justice system, including adjusting administrative fines and fees and avoiding incarceration due to nonpayment of them, which disproportionally burden the poor. And it suggested that minor offenses be decriminalized to help alleviate racial discrepancies and over incarceration.

To assuage the public’s unmet needs for legal services, the commission urged that chronically underfunded government legal services be expanded and fully funded and further recommended that lawyers’ already extensive pro bono efforts be expanded.

The report concluded: “Some may view the Commission’s recommendation as too controversial, and others may view the recommendations as insufficiently bold enough. What is clear, however, is that solutions will require the efforts of all stakeholders.”

Addressing the commission at its meeting, ABA President-Elect Linda Klein praised Hubbard and the “silo-busting” group.

She pointed to the challenges ahead. “It’s neither easy nor comfortable to embrace change. But we’ve got to do it and we’ve got to do it now. It’s clear that lawyers have so much to offer to those who need help, but millions can’t access our services. This has to change, and we must be the drivers of innovations so others don’t do it for us. “